State court rules gay marriage ban is unconstitutional

In a move that follows suit with a federal ruling issued in February, a state district judge has deemed Texas’ restrictions on same-sex marriage unconstitutional – paving the way for a San Antonio couple’s divorce proceedings and subsequent child custody battle to continue.

Judge Barbara Nellermoe, in a five-page ruling released Tuesday, pinpointed three portions of the Texas Family Code as unconstitutional, as well as Section 32 of the Texas Constitution.

Nellermoe wrote that “in a well-reasoned opinion by Judge Orlando Garcia, the federal district court found that a state cannot do what the federal government cannot – that is, it cannot discriminate against same-sex couples.”

The latest ruling comes in response to a same-sex divorce lawsuit that was filed in Bexar County in February by Allison Leona Flood Lesh and Kristi Lyn Lesh, who were married in Washington, D.C., in August 2010.

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What is remarkable about the ruling is its finding that failing to “afford the same presumption of parenthood to the wife of a child’s birth mother as it does to a husband of the birth mother” is unconstitutional, said lawyer Emily Hecht-McGowan, director of public policy at the Family Equality Council.

The organization, based in Washington, D.C., advocates for LGBT families throughout the nation.

A child born in a straight marriage or a legal same-sex marriage is considered a child to both parents, which is known as parental presumption, Hecht-McGowan said. But in cases such as this involving a couple in a state that does not recognize same-sex marriage, the child was only considered legally the child of the birth mother.

But in Nellermoe’s ruling, the judge wrote that such a practice violated the Equal Protection Clause.

“By denying their parents the right to marry, Texas has created a suspect classification of children who are denied equal protection of the law under the Fourteenth Amendment,” Nellermoe wrote.

See here for the background on this case, which was filed shortly before Judge Garcia’s ruling that declared Texas’ Double Secret Illegal Anti-Gay Marriage constitutional amendment to be unconstitutional. As we know, the State Supreme Court heard appeals in two other same sex divorce cases last November, but no one knows when they’ll get around to ruling on it. Judge Nellermoe’s ruling seems pretty straightforward to me, but I’m sure it will be appealed. Sure enough, just as Greg Abbott inserted himself into the other cases, so has he done in this one.

Late Wednesday the State Attorney General’s Office filed what’s called a Plea in intervention with this case. It says, “The state of Texas seeks the opportunity to defend its laws and statutes before this court.”

Attorney General Greg Abbott responding by asking the appeals court to grant an emergency stay delaying Nellermoe’s ruling, arguing that speedy action was needed “to avoid the legal chaos that would follow if the trial court’s broadly worded ruling is mistakenly interpreted as authorization for the creation or recognition of same-sex marriages in Bexar County or throughout the state.”

The San Antonio appeals court agreed Thursday afternoon, staying Nellermoe’s ruling while it considers Abbott’s request to vacate the decision as a violation of the district judge’s authority.

The appeals court also set a May 5 deadline to receive briefs in the case.

Nothing ever comes easy, does it? Be that as it may, I have seen basically no reaction to this, at least so far. Equality Texas posted a link to the story on Facebook, which has been widely shared, as well as the link to that Statesman story, but as of publication I have not seen a statement or press release from anyone. I have no idea if the usual nattering nabobs of negativism have reacted to this ruling, either – I didn’t want to get slime all over my nice clothes, so I didn’t go looking – but I’m sure we’ll hear from them as well as from the good guys.